Gould v. Bruce

Decided February 15, 1827

New York Supreme Court · decided 1827-02-15

Cross motions. The defendant moved for judgment as in case of nonsuit; and the plaintiffs, to strike out the notice given by the defendant with his plea. The cause be-r ing at issue, was noticed, but not tried, at the lastNiaga-ra circuit. It was an action of debt for the escape of one Chapin from the custody of the defendant, as sheriff, on a ca• sa• Plea) ⅛0 general issue, and notice of voluntary return before suit. This notice was not accompanied with an affidavit.

Decided 1827-02-15

Curia.

¶1The statute (1 R. L. 426, sec. 23,) is, that a plea or notice of retaking on fresh suit, shall not be received, unless the defendant make and file an affidavit that the escape was without his knowledge, privity, &c. It is denied that these words extend to the plea or notice of a voluntary return.

¶2We think the latter is within the equity of the statute, which is remedial; and intended to prevent the officer’s connivance at escapes.

¶3We therefore deny the motion, for judgment as in case of nonsuit, on payment of costs. We grant the motion to strike out the notice ; the defendant to be at liberty to retain it, however, on filing the proper affidavit, and paying costs.

¶4Rule accordingly,